5.  The applicant was born in 1968 and lives in Sîngerei.
6.  The facts of the case, as submitted by the parties, may be summarised as follows.
7.  The applicant was convicted of theft and robbery and served his sentence, having been conditionally released on 7 April 1999. On 20 April 2000 he was arrested by the police for resisting them and taken to the police station in Ialoveni. A court found that the applicant had not committed any offence and ordered his release.
8.  After releasing him, the police immediately re-arrested him and filmed him. Thereafter he was accused of having murdered P., the director of a private company.
9.  According to the prosecution, the applicant had good relations and was in frequent contact with his former colleague S., who in turn maintained close relations with a company directly competing with that of P. for rice imports from Romania. P. had received a number of threats to make him stop his activity, the latest of which had been on 8 September 1999.
10.  The prosecution submitted that on 12 September 1999 the applicant and another suspect, who remained unidentified, had waited near P.’s house until he came out with a sports bag in his hand and climbed into a truck that was waiting for him. At that moment (approximately 7 p.m.) the two suspects had opened the passenger door and one had ordered P. at gunpoint to hand over the bag containing 8,700 United States dollars and 12,000 Moldovan lei. P. had kicked the attacker and had been shot three times. He died shortly afterwards. The other suspect had threatened Z., the truck driver, with a knife and ordered him to stay put, and had then taken the bag. He and the applicant then fled into a nearby park.
11.  The court found that the applicant had never admitted his guilt and that on 20 April 2000 a charge of resisting the police had been fabricated by officers Dodu and Gulea from the Ialoveni police station. After being acquitted of the offence by a court, he had been arrested again by the same police officers.
a.  Statements by the witnesses
12.  The court examined the statements made by various witnesses in the case. P.’s wife stated that the decision to travel to Romania on business had been taken in the afternoon of 12 September 1999 and that only she, P.’s cousin M.P., a business partner V. and the truck driver Z. had known about this. She confirmed that threats had been made against her husband by agents of the competing company.
13.  M.P. and V.P., P.’s cousin and brother, were not present at the crime scene but confirmed that threats had been made against P. by agents of the competing company.
14.  Z., the truck driver, confirmed the attack by two unknown persons. During the investigation he listened to three male voices, including that of the applicant refusing to repeat a standard text, but did not identify either attacker’s voice. He did not recognise the applicant’s voice during the court hearings either. The court concluded that nothing in Z.’s testimony pointed to the applicant’s involvement in the crime.
15.  C.I., a witness, testified in court that he did not remember the date or month of the event. He had seen two men attack the passenger in the truck and flee past him. He later recognised one of them during the identity parade as being the applicant, who was the shorter of the two attackers; the other had had a black object in his hand. He also recognised the shirt taken from the applicant’s house as having been worn by one of the attackers. It was the taller person and not the applicant who had shot P.
16.  C.D., another witness, did not remember the date, month or year of the event. She had seen two men attack the truck’s passenger. The taller one, dressed in light coloured clothes, had pulled the victim from the truck and taken the bag, after which both attackers, who were armed, had fled. She had not seen anyone come out of the car parked behind the truck.
17.  The court found that the statements of C.I. and C.D. were inconsistent with their earlier statements. During the initial investigation each had said that the person wearing a dark denim shirt was the taller one and had the bag in his hand; they had recognised him as the applicant. However, during the court hearing they stated that the applicant was the shorter one and had been wearing a velvet shirt. The court also doubted that either of them could have seen P. kicking one of the attackers: according to both witnesses, the two attackers had mounted the truck’s ladder, but in that case the witnesses could not have seen anything in the cabin. C.I.’s and C.D.’s statements also contradicted Z.’s statement, according to which one attacker had climbed into the truck from the passenger side, while the other threatened him with a knife. The person wearing dark clothes had shot P., but Z. did not recognise the applicant as being that person, nor as being the other attacker. Besides, both C.I. and C.D. stated that the shots had been fired from a short distance, when both attackers were on the truck’s ladder. However, the expert report could not prove the distance from which the shots had been fired, except to find that they had not been made from a short distance (of under one metre). Another report showed that the shots had been fired upwards at a 45º angle. Hence, the shot could not have been fired from the truck’s ladder, contrary to the testimony of these two witnesses.
18.  C.C., another witness, generally confirmed the events witnessed by C.I. and C.D. but could not recognise any of the attackers.
19.  U.E. was an off-duty police officer who had been waiting for his friend in a car parked some distance behind the truck at the time of the attack. At the beginning of the investigation he stated that he had not realised that a crime was being committed and did not think he could identify any of the attackers. He had seen one attacker from the side and the other from the back. Both had been wearing dark clothes; one had medium-length dark hair and was aged around 30. He gave similar statements on 4 January and 19 April 2000. On 7 May 2000 he was able to remember details such as the colour and material of the attackers’ shirts; the colour of their hair and hairstyles; their approximate height; and that the shorter attacker wore a light coloured shirt (as opposed to his earlier statement that both had worn dark clothes). The court considered that his statements were not reliable since they contradicted his own earlier statements and those made by witnesses C.I. and C.D. U.E.’s statement was videotaped but was not shown to him after the event as required by Article 115 of the Code of Criminal Procedure (“the CCP”, see below). Moreover, the court questioned U.E.’s actions since he, as a police officer, had not reacted to a number of signs that a crime was being committed, such as the sound of shots, the fact that the truck’s driver had fled in one direction while two other persons ran in another, and that someone had fallen to the ground from the truck.
20.  Other witnesses confirmed the nature of the relations between P. and the competing company but did not, in the court’s opinion, confirm in any way the applicant’s involvement.
21.  N.E., another witness, stated that the applicant and his girlfriend E.L. had been renting her apartment since early 2000. They did not have much money, and brought food from E.L.’s parents. The applicant was arrested by two police officers at her apartment; she was told he was suspected of murder.
22.  Several witnesses (E.L., T.I., G.N.) testified that on the day of the crime they had seen the applicant with his girlfriend E.L. in her room in a dormitory. G.N., a nurse, had given E.L. medication because she felt ill, at approximately 4 p.m. and 8 p.m. on that day. She was not sure whether it had been 11 or 12 September, but she remembered distinctly that it had been a Sunday (12 September 1999 was a Sunday). She had seen the applicant with E.L. at 8 p.m.
23.  E.L. confirmed that the applicant had been with her all that time. He had not had any dark trousers before November 1999, as confirmed also by I.T. and G.N.
24.  None of the witnesses who lived in the same dormitory as E.L. had noticed any improvement in her financial state or that of the applicant after September 1999.
25.  S. and C.A. denied having informed E.L. about the course of the investigation. C.A. confirmed that he had handed E.L. a note from the applicant, in which the latter claimed to have requested various personal items and that food be brought to him. The applicant had sent a similar letter to S.
b.  Reports on evidence gathering procedures
26.  On 21 April 2000 the applicant was presented to witnesses in an identity parade. The court noted that witness C.I. confirmed that he had been shown a sketch of the applicant before the identity parade, and that no record of that procedural act had been made, contrary to Article 115 of the Code of Criminal Procedure (see below). He then recognised the applicant in the identity parade.
27.  During the identity parade and in court witness C.D. was not completely sure that she had seen the applicant at the crime scene. She told the court that she had been shown a short video recording of the applicant just before the identity parade. One of the other persons in the identity parade (S.S.) stated that C.D. had not been sure of herself when she identified the applicant; she had stated that the attacker had worn a blue denim shirt. In addition, the video recording of her recognising the applicant in the identity parade was very poor and it was impossible to determine what she had said or at whom she had pointed.
28.  Neither C.I. nor C.D. was shown the recording of the identity parades with their participation, again contrary to Article 115 CCP (see below).
29.  The court found that the prosecution did not deny having videotaped the applicant on his arrest without registering that act. The prosecution merely argued that the applicant and his lawyers had not complained about the videotaping until the trial.
30.  During the identity parade the applicant was dressed in a grey velvet shirt, which later (on 20 August 2000) was taken as incriminating evidence by the prosecution and identified by some witnesses as having been worn by one of the attackers. None of the witnesses recognised the shirt on the day of the identity parade. The court found that all the witnesses who recognised the shirt had previously stated that it was a denim shirt, whereas the one found in the applicant’s house was velvet. Moreover, C.I. was shown another shirt for recognition, the recorded size of which was much bigger than the one found at the applicant’s house.
31.  Mr Andrei Dodu, the officer who arrested the applicant on 20 April 2000, also reported on a search of the applicant’s mother’s house on 30 April 2000. At the court hearing witnesses present during the search, as well as the applicant’s mother, confirmed that no bag handle had been found in the house and taken as incriminating evidence during the search and that they had signed the report without any mention of any specific finding. The court also found that the text of the report had been altered, additional information about finding a bag handle having been added to the report and written over the lines crossed through the empty space at the bottom of the document. Contrary to the legal requirements, the report did not state precisely where the handle had been found or its characteristics, and the object was not kept in a sealed bag.
32.  The court concluded that the report had been fabricated by its author, officer Dodu, who could not provide in court any details about the circumstances of finding the bag handle. In addition, the handle was absolutely new and could have come from any similar bag sold in the shops.
33.  A number of expert reports were made, establishing that three shots had been fired from an unknown distance (but not from close range) from an unknown type of revolver with a 37.5 mm calibre. The weapon was not found. No report appears to have been made on the presence or absence of traces of gunpowder on the applicant’s clothes.
c.  The court’s conclusions
34.  The court concluded that none of the witnesses had stated that any of the persons at the competing company, the applicant or his acquaintances had been aware of P.’s unplanned business trip. Only four persons close to P. had known about the trip on 12 September 1999. The prosecution had not investigated whether any of the drivers whom Z. had informed about the trip during the period between 1 and 5 p.m. on the date of the crime could have been involved in the crime.
35.  The expert reports proved only the manner in which the crime had been committed and not the applicant’s involvement in it. The witnesses who claimed to have recognised the applicant had contradicted their own statements made before the applicant’s arrest and statements of other prosecution witnesses, contradictions which could not be reasonably explained. Moreover, evidence had been obtained with serious violations of criminal procedure, which meant, under Article 55 of the CCP, that it could not be relied on.
36.  No one in P.’s competing company had been charged with ordering the killing of P., even though this was the version relied on by the prosecution. Moreover, it was clear from the attackers’ actions that they initially wanted just the money and not to kill P. Only after the latter resisted was he shot. The court was convinced that the attackers had planned a robbery and that one attacker had exceeded the initial common intention and was alone responsible for P.’s murder. Even if the statements of C.I. and C.D. were to be accepted in evidence, according to them it was not the applicant but the other attacker who had shot P. In that case, the applicant could not be held responsible for the excessive action of the other attacker.
37.  The evidence relating to the relations between the applicant, S. and P.’s competing firm did not in any way prove the applicant’s guilt.
38.  The court acquitted the applicant, finding that there was no evidence that he had committed the crime.
39.  On 22 October 2001 the Court of Appeal upheld the lower court’s judgment. It found that the prosecution’s case was based on assumptions and evidence obtained in serious breach of the Code of Criminal Procedure. The court emphasised that the applicant had been filmed and the videotape shown to witnesses before the identity parade and that there was no direct evidence proving his guilt.
40.  The court rejected the prosecution’s submission that P. had been killed by the applicant on the orders of the competing company, since those responsible should also have been accused of the crime.
41.  On 15 January 2002 the Supreme Court of Justice held a hearing from which the applicant was absent, being represented by his lawyer, and at which no witnesses were heard. The court quashed the lower courts’ judgments and delivered a new one, convicting the applicant. It did not examine any evidence directly and based its findings on the case file as established by the lower courts. It found the evidence to be sufficient to prove the applicant’s guilt and that the lower courts had reached incorrect conclusions on the basis of the file.
42.  The court found that the applicant’s guilt was proved by the following evidence: P.’s wife stated that unknown persons had killed her husband and taken money from him; he had earlier been threatened by agents of the competing company; similar statements regarding threats from the competing company were made by M.P. and V.P; and they had also recognised the bag handle found in the applicant’s mother’s house as coming from the bag taken from P. on the day of the attack.
43.  Z., the truck driver, confirmed that P. had been threatened by agents of the competing company. On 12 September 1999 at around 7 p.m. he had arrived with his truck and P. had come out and climbed in. Then a person had opened the passenger door and threatened P. with a gun, asking for the bag containing the money. P. had offered resistance and two shots were then fired. Another man had climbed into the truck and threatened him with a knife, taking the bag. Both attackers had fled into the woods.
Two expert reports confirmed P.’s death from three gunshots.
44.  C.I. declared that he had seen the applicant attack P. and flee with the bag. He had recognised the applicant in the identity parade. These statements were confirmed by C.D. and C.C., who were with him.
45.  U.E. also confirmed that he had seen the applicant on 12 September 1999 during the attack. After hearing gun shots, he had seen two men running from the truck, one of whom he had identified as “a person with sunglasses and a sports bag in his hand”.
46.  C.I., C.D., C.C. had been some fifteen metres from the applicant and U.E. had been even closer, remembering the shape of the applicant’s lips, and his height, hairstyle and clothes. All witnesses declared that there could be no case of mistaken identity as they had seen the applicant clearly.
All this evidence excluded any doubt about the applicant’s guilt.
47.  The court dismissed the statements of witnesses providing an alibi for the applicant because they were inconsistent. There was no evidence that E.L., the applicant’s girlfriend, had been ill on 12 September 1999 precisely and that the applicant had been with her throughout the day. Moreover, none of the witnesses had indicated 7 p.m. precisely as the time when the applicant had been with E.L. One witness (N.E.) had not even been sure of the date, remembering only “one day in September” as the day which E.L. had spent ill in bed and not remembering whether the applicant had been with her.
48.  Moreover, E.L. had been coached about what to say during the investigation, as confirmed by S. and C.A., who had organised meetings and transmitted information to her. Even though E.L. claimed to have felt very ill on the day of the crime, she and the applicant had not called an ambulance, which could have proved her state of health. In addition, the distance between E.L.’s dormitory and the crime scene was not substantial and could be covered quickly by car.
49.  The court also noted that the applicant was an old colleague of S., with whom he had maintained contact. S. in turn had been in frequent contact with P.’s competing company and the applicant had also become close to that company’s owners as an acquaintance of S. Thus the applicant had been aware of P.’s activity and that he carried a lot of money, which had prompted him to commit the crime.
50.  Basing its decision on the above evidence, which it found to be coherent and logically consistent, the Supreme Court of Justice convicted the applicant and sentenced him to twenty years’ imprisonment.